COUNSEL: D Arnott SC (Appellant) W Terracini SC, J Trevallion (Respondent)
SOLICITORS: Solicitor for Public Prosecutions (Appellant) Archbold Legal Solutions (Respondent)
CATCHWORDS: CRIMINAL LAW – appeal – appeal from directed acquittal ‘on any ground that involves a question of law alone’ – identifying ground of appeal – meaning of question of law and similar statutory formulations – statutory context – abrogation of double jeopardy principle – mixed question of law and fact not question of law alone – application of law to facts not question of law alone – Crimes (Appeal and Review) Act 2001, s 107 CRIMINAL LAW – double jeopardy – abrogation of double jeopardy principle by s 107 of the Crimes (Appeal and Review) Act 2001 CRIMINAL LAW – murder – manslaughter – actus reus – not necessary to establish precise act causing death CRIMINAL LAW – appeal and new trial – powers of Court of Criminal Appeal – nature of discretion in quashing acquittal and directing new trial under s 107 – prosecutorial discretion – whether Court can limit new trial to manslaughter only, where original trial for murder – circumstances in which Court can limit new trial – Crimes (Appeal and Review) Act 2001, ss 101, 104, 107 – Criminal Appeal Act 1912, ss 6, 8 STATUTORY INTERPRETATION – ‘on any ground that involves a question of law alone’ – ‘may order a new trial in such manner as the Court thinks fit’ – statutory context – abrogation of common law principle of double jeopardy WORDS & PHRASES – ‘may’ – ‘question of law alone’
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v PL [2009] NSWCCA 256
Case
[2009] NSWCCA 256
Decision Date
CaseChat Overview and Summary
The respondent, PL, appealed against his directed acquittal by the trial judge on a charge of murder. The appeal was heard by the NSW Court of Criminal Appeal, which considered several grounds of appeal, one of which pertained to the legal requirements of establishing the actus reus for murder. The primary legal issue was whether the trial judge erred in requiring the Crown to identify a specific act of the accused that caused the victim's death. The appeal court also examined whether the trial judge's decision could be described as a question of law alone under the statutory framework that allows for appeals on such grounds. Additionally, the court had to determine whether it could limit a new trial to manslaughter, rather than permitting a retrial for murder.
The Court of Criminal Appeal concluded that the trial judge's direction regarding the need to identify a specific act causing death was indeed a question of law. The court found that the trial judge's error pertained to a legal proposition, separate from its application to the facts, and therefore involved a question of law alone. The court held that the abrogation of the double jeopardy principle under the Crimes (Appeal and Review) Act 2001 meant that the court could consider mixed questions of law and fact. The court also determined that it had the discretion to limit a new trial to manslaughter under specific circumstances, namely when the evidence did not support a finding of murder but did support a manslaughter charge.
The Court of Criminal Appeal quashed the respondent's acquittal and ordered a new trial limited to the charge of manslaughter. The court reasoned that since the evidence did not support a finding of murder, it was appropriate to limit the new trial to the lesser charge. This decision was consistent with the statutory framework and the court's discretion to manage the scope of a retrial in such cases.
Orders
Orders of the court
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Background
Background to the litigation
The position with respect to Ground 3 is, however, different. As reformulated at [6] above, the ground identifies, most clearly by the word “necessary”, a legal requirement of any Crown case of homicide. That, in my opinion, involves “a question of law alone”. This states a legal proposition which is a distinct and separate step in the reasoning process. In the same way as the interpretation of a statutory provision considered in R v JS. This legal proposition is logically anterior to its application to the facts of a particular case.Factual Background The respondent was charged with the murder of his partner. They had been in a relationship for about three years. His Honour summarised the facts, “taking the Crown case at its highest”, as follows (at [8]):“(a) [PL] and the deceased were joint owners of their home worth about $600,000;(b) They lived together since 2004, the property having been purchased from the assets of the deceased;(c) Each of [PL] and the deceased had partners prior to each other;(d) On Good Friday, 6 April 2007, [PL] and the deceased had an argument, the subject matter of which is, according to the Crown, irrelevant, but concerned “a guy doing tiles”, after which [PL] stormed off; (e) At some time on Saturday morning, 7 April 2007, the couple engaged in consensual sexual intercourse;(f) During the course of the morning, [PL] made carrot juice for the deceased and/or himself;(g) While [PL] was making the carrot juice, the deceased “kept at him”, they had a fight;(h) Between 8.15am and 8.30am on 7 April 2007, there was a sound from the house, heard by the neighbour, like a shelf falling, pots clanging and lids rolling around the floor;(i) The neighbour then heard the deceased singing (but I will assume, notwithstanding the evidence, a scream), there was then silence (said to be for about 10 minutes) and then the sound of [PL] wailing;(j) At 9.00am a witness rang the home and [PL] was hysterical;(k) When the first persons arrived at the scene, at about 9.15am, [PL] was seen wailing or crying hysterically, cradling the deceased’s head, rocking back and forward, his arms extremely tightly bound around the deceased’s neck and head. [PL] was in a state of total distress and was, as stated, totally hysterical;(l) The deceased’s heart had stopped by the time ambulance officers arrived. Resuscitation was unsuccessfully attempted.” His Honour also referred to fact there was a 57 minute gap between one witness hearing “crashing noises like a shelf falling” at 9.12am and the respondent calling 000: [9]. In that call, the respondent said, “I have a fight with my friend and my friend dead”. The Crown relied on this significant time gap. The Crown relied on evidence that the relationship between the men had been deteriorating and that the deceased had expressed his intention to friends to end his relationship with the respondent. Furthermore, there is suggestion that the respondent would benefit financially from the deceased’s death. (The terrace in which they lived had been purchased by the deceased, but registered in both names.)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
SPIGELMAN CJ
CLELLAN CJ
In my opinion, if his Honour proceeded on the basis that the Crown had to establish the particular act of the accused which caused death, then his Honour erred and did so with respect to a question of law alone.Conclusions of Rothman J His Honour came to the following conclusions relevant to Ground 3:“[38] Ultimately, the Crown case on cause of death and the means by which it was achieved relies upon the proposition that, “general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved”, namely, the deceased being hit with the juice extractor, falling back and hitting his head causing the head injuries and some attempt at strangulation, before or after this occurrence, causing the neck injuries.[39] In the context of a murder trial, the Crown must prove beyond reasonable doubt: that an act of the accused caused death; that the act was deliberate; and that the accused had an intention to kill, an intention to cause grievous bodily harm or a reckless indifference to human life. [40] In this case, the mechanism, being, in this context, the act that caused the injuries causing death, has to be speculative and, as a consequence, renders a finding of a deliberate act by the accused more speculative. A fortiori, it renders the necessary state of mind for murder, most speculative, and not a matter on which the jury is entitled to draw an inference. The jury is not entitled to conjecture or fill the gaps that, without any criticism of the Crown or the police, necessarily arise in this matter. [41] Further, given the availability on a charge of murder to the alternative of manslaughter, it is necessary to deal with that aspect. Much of the previous analysis, and all of the facts, are relevant in this regard. [42] The relevant difference between murder and manslaughter is, in this case, the state of mind of the perpetrator. In manslaughter it is unnecessary to show an intention to kill or inflict grievous bodily harm. However, it is necessary, relevantly, for the Crown to show an unlawful and dangerous act. Since the act causing death is not proved beyond a reasonable doubt, it is mere conjecture to suggest that the accused committed an unlawful and dangerous act, i.e. an act that a reasonable person would understand had an appreciable risk of serious injury: Wilson v R [1992] HCA 31; (1992) 174 CLR 313 at 333.[43] In the circumstances, I propose to direct the jury to return a verdict of not guilty to murder and, also, not guilty to manslaughter.” As I have noted above, the Crown contends that his Honour erred, with particular reference to [40] and [42] of the passage just set out, by proceeding on the basis that it was necessary to identify a particular act of the accused which caused the injuries that led to death. The principal contention on the part of the respondent is that his Honour did not proceed on the false legal basis for which the Crown contends. His Honour’s reasons should be understood as stating that, having regard to the whole of the facts – taken at their highest – guilt could not be established unless the Crown could rely on medical evidence which established the mechanism of death. This, the respondent submitted, was an issue of mixed fact and law and this Court has no jurisdiction on such a matter. If the respondent’s characterisation of his Honour’s reasons is correct, that conclusion does follow.